I. The Current IOM Mandate Allows Interference in Legal Decision-Making

As it currently drafted, the IOM mandate could permit major interference with substantive legal decisions. Resolution ICC-ASP/9/Res.5, establishing the Independent Oversight Mechanism (IOM), charges the organization with “receiving and investigating” possible acts of misconduct.5 This mandate seems narrow enough, until one examines the definition of misconduct provided in footnote 2. Misconduct is equated to “unsatisfactory conduct”, and includes “any act or omission by elected officials, staff members or contractors in violation of their obligations to the Court pursuant to the Rome Statute and its implementing instruments.”6

So what are the obligations to the Court of various staff and elected officials? And how might an act or omission be considered a violation of those obligations? The IOM is still in its infancy, so with no institutional precedent to examine, we must instead look to the Rome Statute for answers. Unsurprisingly, the Statute is full of provisions that create obligations for Court personnel. For the purposes of this comment, I will point out three linked to substantive legal decisions that the Prosecutor must make on a regular basis: initiating an investigation, what to cover in an investigation, and what evidence to share with the defense.

Article 53(1) states that the Prosecutor “shall” initiate an investigation unless he determines that there is no reasonable basis to proceed.7 This creates an obligation for the Prosecutor: when he determines that there is a reasonable basis to proceed with an investigation, he must proceed (unless it is not in the interests of justice, a separate substantive decision.)8 As the IOM mandate stands now, a complaint about the Prosecutor’s failure to launch a specific investigation could trigger an investigation into whether there was a reasonable basis to proceed, thereby second guessing his legal decision.

After initiating an investigation, Article 54 states that the Prosecutor “shall....extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.”9 Again, an obligation is created for the Prosecutor that would pave the way for IOM review of his or her decisions. In conducting an investigation, the Prosecutor may disregard a body of evidence after coming to the conclusion that it is legally insignificant to the case being built. But if the IOM were to receive a complaint about this decision, it could question the Prosecutor’s decision on the grounds that this evidence is relevant.

The final example pertains to the evidence sharing process known as discovery in U.S. courts. Article 67(2) dictates that the Prosecutor shall “disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.”10 This is a legal decision in which the Prosecutor must consider the evidence in light of the case at hand in order to determine if it meets any of these criteria. It would be simple enough for defense lawyers to complain to the IOM that relevant evidence was not shared, an omission in violation of the Article 67(2) obligation. This would then allow the IOM to review the Prosecutor’s entire case and rationale for non-disclosure.

The above examples are just a small subset of ways in which the current IOM mandate would allow interference in substantive legal decisions. With the possibility of interference established, my analysis can now turn to the reasons why it must be prevented.

II. Treaty Limitations

The first reason that the IOM mandate must be modified is the most straightforward: the Rome Statute does not provide support for its current powers. Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT) states that a treaty shall be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”11 There is no context in Article 112 with which to interpret “efficiency and economy”, which leaves us with two questions: What is the object and purpose of the Rome Statute and how does it shape the ordinary meaning of “efficiency and economy”?

Article 31(2) of the VCLT allows us to examine the entire text and preamble of the treaty in order to determine its object and purpose.12 Language like “ending impunity” and “must not go unpunished” found in several lines of the preamble tells us that furthering justice in the international system is the primary goal of the court.13 However, it is the final line of the Rome Statute’s preamble that is the most telling. The drafters of the Statute were “resolved to guarantee lasting respect for and the enforcement of international justice.”14

The Rome Statute also contains important structural elements that highlight the furtherance of justice as its primary object and purpose. Paramount among these is the focus on independence for Chambers and OTP. Article 40(1) states that “judges shall be independent in the performance of their functions.”15 Article 42(1) does the same for the Prosecutor.16 The importance of independence is also evident in the provisions demanding the recusal or dismissal of judges or Prosecutors acting in cases where they have a conflict of interest.17 In fact, Article 42(5) goes beyond traditional conflict of interest concerns, and forbids the Prosecutor or Deputy Prosecutor from engaging in any activity likely “to affect confidence in his or her independence.”18 The need for these provisions is obvious in light of the Court’s purpose of furthering justice; judges and prosecutors must be free of outside influence in order to make legal decisions based on the merits alone.

The Court’s primary objective and the structural elements of the Rome Statute designed to further it place important limitations on the meaning of “efficiency and economy” as read in Article 112(4). The ordinary meaning of this phrase is tied to the costs of the Court, internal administrative processes, and other factors that have an effect on productivity, such as procedural and budgetary auditing. The expansion of Commerce Clause powers in the U.S. Constitution demonstrates how far similar language can be stretched however, and there are arguments that could expand “efficiency and economy” into all areas of the Court’s work.19 This is where the aforementioned limitations come into play. The Court’s object and purpose of justice and related requirement of independence restricts the ordinary meaning of the statute to those areas that do not deal with substantive legal decisions. Thus, the Rome Statute requires an IOM mandate based firmly around a narrow reading of enhancing “efficiency and economy.”

As the mandate stands now, the IOM may read “efficiency and economy” as broadly as it likes. Reform is required to bring the mandate in line with the standards created by the language and structure of the Rome Statute.

III. Bureaucratic Review of the Court’s Legal Processes is Not in the Interests of Justice

In addition to the treaty based restraints on the IOM mandate, policy grounds also call for reform. The previous section established the object and purpose of the Rome Statute and the ordinary meaning of “efficiency and economy” in order to highlight the disconnect between the current IOM mandate and that envisaged by the Rome Statute. These two concepts also introduce a second problem with the current mandate: it risks conflict between the distinct objectives of the IOM and those of Chambers and OTP. Allowing the IOM, with its “efficiency and economy” concerns, to review the legal decisions of OTP and Chambers, who base their decisions on the interests of justice, will lead to unnecessary organizational friction.

For this very reason, successful domestic criminal justice systems do not possess bureaucratic oversight agencies with authority over legal decisions.20 Whether in the U.S. or Venezuela, prosecutors do not worry about an IOM criticizing their decision to proceed with a trial because it would too expensive or time consuming.21 So why shouldn’t the interests of justice enjoy the same manner of primacy at the ICC? The answer can be found in the following framing: When founding an international court designed to end impunity and bring war criminals and human rights violators to justice, upon what should the staff of the court base their legal decisions? “Efficiency and economy” or the interests of justice?

Good policy dictates a limited role for the IOM. What happens if the example dealing with the scope of investigation from Section II is flipped? This time, the Prosecutor chooses to dedicate investigatory resources to a body of evidence because doing so is important to victim advocacy groups, though it is unnecessary to prove criminal responsibility in light of other available facts. If the IOM chooses to investigate on the grounds that resources were inefficiently utilized, it would be second guessing a legal decision made by the Prosecutor in the interest of justice. Who should triumph here? Though it may be more expensive and time consuming to do so, the Prosecutor may decide that in the interests of justice the investigation should include evidence of great import to the victims. There is no reason to have an oversight body investigate and report on substantive legal decisions if objections raised on efficiency grounds may be overruled by the interests of justice. Yet no one is likely to suggest that the roles be reversed and the IOM’s objectives should become paramount. Thus, the problem should be avoided altogether by reforming the IOM’s mandate in a way that prevents it from investigating and reporting on substantive legal decisions. Without modification of the mandate, the possibility of future objectives-based conflicts will remain.

IV. Risk to Confidentiality

An IOM mandate that permits investigations into any perceived violation of Rome Statute obligations, legal decisions included, will require complete access to information. Resolution ICC-ASP/9/Res.5 attempted to address this by applying the same standards of confidentiality that bind OTP and other court staff to the IOM.22 Yet, if the IOM mandate were restricted to the areas that the Rome Statute and policy consideration demand, little sharing of sensitive information would be necessary. The more that information must change hands, and the more hands it ends up in, the greater the chance that sensitive case facts or victim details could be leaked.

V. Conclusions

The current IOM mandate, by allowing for interference in legal decision making, oversteps the objectives laid out for it in the Rome Statute, poses a risk to institutional harmony, and presents confidentiality concerns. However, this is not to say that the IOM must be scrapped altogether. Reforming the mandate so that it does not allow for interference in legal decision making would be relatively straightforward. If the ASP were to add a clause to the IOM’s investigative function that specifically delineates the Rome Statute obligations (only those tied to “efficiency and economy” read narrowly) that the IOM can investigate, these problems can be avoided. Alternatively, the ASP can add a clause that lists the obligations tied to substantive legal decision making that the IOM cannot investigate in any circumstances. This comment provides a small sampling of such obligations that would be included on such a list. Either of these solutions would resolve the potential problems highlighted in this comment while still preserving the potentially beneficial functions of the IOM.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], at art. 112(4). ↩

2. 2.

   I am not arguing that review of legal decisions is unnecessary, only that it should remain solely within the judicial organs of the court, and in rare cases, the ASP. Between Pre-Trial Chambers, Trial Chambers, Appellate Chambers, The Presidency, the Prosecutor, and the ASP, there are already enough review mechanisms in place for legal decisions. For a more complete discussion of this argument, see Grace Lo’s comment. ↩

3. 3.

   Rome Statute, supra note 1, at art. 40 and 42. ↩

4. 4.

   See id., at art. 53, 55, 61, 65, 67 (each article referencing importance of “interests of justice” in different contexts). ↩

5. 5.

   Independent Oversight Mechanism, Resolution ICC-ASP/9/Res.5 (December 10, 2010). ↩

6. 6.

   Id. ↩

7. 7.

   Rome Statute, supra note 1, at art. 53(1). ↩

8. 8.

   Id. ↩

9. 9.

   Id., at art. 54(1)a. ↩

10. 10.

    Id., at art. 67(2). ↩

11. 11.

    Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, at art. 31(1). ↩

12. 12.

    Id., at art. 31(2). ↩

13. 13.

    Rome Statute, supra note 1, Preamble, at para. 4 and 5. ↩

14. 14.

    Id., at para. 11. ↩

15. 15.

    Id., at art. 40(1). ↩

16. 16.

    Id., at art. 42(1). ↩

17. 17.

    Id., at art. 42(5)(6)(7) and 41(2). ↩

18. 18.

    Id., at art. 42(5) ↩

19. 19.

    Returning to the example from Section II, would opening a new investigation (with reasonable basis) spread OTP resources too thin and have a negative impact on other ongoing activities? This possible scenario, along with many others, highlights the presence of both efficiency and justice concerns in commonplace legal decisions. ↩

20. 20.

    See Bureau of Justice Statistics, for a compilation of summaries and statistics on 45 domestic criminal justice systems worldwide, available online. ↩

21. 21.

    Instead, change comes in the form of checks within the judicial system (i.e. U.S. courts suppress evidence that police have obtained in violation of certain rights) or through legislative action. ↩

22. 22.

    Resolution ICC-ASP/9/Res.5, supra note 5, para. 17. ↩